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THE SHERMAN LAW 


AND THE 

NEW ENGLAND RAILROADS 


A SPEECH 

BY 

ALBERT H. WALKER 


AUTHOR 

OF 

THE HISTORY 

OF 


THE SHERMAN LAW 







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PREFACE. 


The Committee on Rules of the House of Represen¬ 
tatives of the United States, on December 10 and 11, 
1912, sat to hear statements and arguments for and 
against House Resolution No. 718, which had been in¬ 
troduced by Mr. O’Shaunessy of Rhode Island. That 
resolution, if recommended by the Committee on Rules, 
and adopted by the House of Representatives, will cause 
a Congressional investigation of the relations in New 
England between the New York, New Haven & Hartford 
Railroad Company and the Boston & Maine Railroad 
Company, and the Grand Trunk Railroad Company of 
Canada. On the evening of the last day of the hearing, 
after many gentlemen from the New England States 
had addressed the Committee, the chairman, Mr. Henry 
of Texas, requested Mr. Albert H. Walker, as the author 
of the History of the Sherman Law, to supplement the 
discussion by a statement of his views of the law which 
was applicable to the facts which had been presented 
to the Committee, in the form of testimony and other 
evidence. Thereupon, Mr. Walker made the speech 
which is printed on the following pages, and which pages 
are copies of pages 178 and 183 inclusive, of the officially 
printed report of the Hearings before the Committee on 
Rules. 

Park Row Building, A. H. W. 

Manhattan, New York, 

January 13, 1913. 







Author 


23 iAN I&IJ 







STATEMENT OF ALBERT H. WALKER OF NEW YORK. 


Mr. Chairman and gentlemen of the committee, I ap¬ 
pear before you at the request of the chairman. I do 
not represent any client who has any interest in the 
New York, New Haven & Hartford Railroad Co., or in 
any other corporation which has been mentioned here 
to-day. I occupy the position of a jurist, and writer on 
questions in the interstate-commerce law and the Sher¬ 
man law, to make such suggestions as have occurred to 
me relevant to the application of those laws to the facts 
which have been presented to the committee; and after¬ 
ward to answer whatever questions may be put to me by 
the committee on any of these topics. 

I have heard all that has been said during this in¬ 
quiry, and I understand that the question before the 
committee is whether it shall recommend the House to 
appoint a special committee to make an investigation into 
certain points of fact. 

The House has jurisdiction to investigate matters 
only where it has jurisdiction to take action in pursu¬ 
ance of whatever facts it may ascertain. That action 
may take the form of legislation, or it may take the 
form of impeachment of unfaithful executive officers. 
And without suggesting at this moment that there is any 
occasion to exercise this last jurisdiction, it is plain that 
whenever anything is brought to the attention of Con¬ 
gress which is worthy of consideration, and which lays 
the foundation for a suspicion that there might be some 
propriety in impeachment proceedings, Congress has 
jurisdiction to at least investigate the charges. 

In order to apply the facts which have been developed 
in this hearing to the legal problems involved, it will be 
necessary for me to make a brief statement of some por¬ 
tion of the development of the jurisprudence which 
passes under the name of the Sherman law. The Sher- 


2 

man law was enacted by Congress in 1890, and I will 
read at this moment sections 1 and 2 of that act, which are 
very brief, and which are all that need to be read in order 
to explain the relation of that statute to the facts before 
the committee. 

Section 1 of the Sherman law reads as follows: 

Every contract, combination in the form of a trust or 
otherwise, or conspiracy, in restraint of trade or com¬ 
merce among the several States or with foreign nations 
is hereby declared to be illegal. Every person who shall 
make any such contract, or engage in any such combina¬ 
tion or conspiracy shall be deefmed guilty of a mis¬ 
demeanor, and on conviction thereof shall be punished by 
a fine not exceeding five thousand dollars or by impris¬ 
onment not exceeding one year, or by both of said pun¬ 
ishments in the discretion of the court. 

The improper thing which is prohibited by this sec¬ 
tion is therein defined as combination in restraint of 
trade. This section does not prohibit restraint of trade 
which may be perpetrated by one corporation or man. 

Section 2 is as follows: 

Every person who shall monopolize, or attempt 
to monopolize, or combine or conspire with any 
other person or persons to monopolize, any part 
of the trade or commerce among the several 
states, or with foreign nations, shall be deemed guilty 
of a misdemeanor; and on conviction thereof shall be 
punished by a fine not exceeding five thousand dollars, 
or by imprisonment not exceeding one year, or by both 
of said punishments in the discretion of the court. 

Shortly after the beginning of the administration of 
President Roosevelt, he directed his Attorney General 
to bring an action against the Northern Securities Co., 
the Great Northern Railway Co., and the Northern Pa¬ 
cific Railway Co., for violation of the first section of 


3 


the Sherman law. The theory upon which that action 
was based was this, namely: A new corporation, the 
Northern Securities Co., was organized in the State of 
New Jersey, and that corporation purchased all the stock 
of the Great Northern Railway Co., and all the stock of 
the Northern Pacific Railway Co., with the view of run¬ 
ning the two railroads as one system. That suit reached 
the Supreme Court of the United States, and in 1904 
that court decided, by a vote of five judges to four, that 
that was an illegal combination, because it violated sec¬ 
tion 1 of the Sherman law. Four justices dissented from 
that decision. The dissenters were Chief Justice Fuller, 
Justice White, who is now Chief Justice, Justice Peck- 
ham, and Justice Holmes. Those justices dissented from 
the opinion of the Court on their view that a violation of 
the Sherman law does not result from a mere combina¬ 
tion of two theretofore competing corporations, and that 
such violation does not occur until some overt act is com¬ 
mitted in pursuance of such a combination and which 
overt act results in restraint of trade. And in the view 
of Justice White and the three other dissenting justices, 
such overt acts had not yet been committed in the North¬ 
ern Securities case, and therefore the Sherman law had 
not been violated. 

But the opinion of the court was delivered by Asso¬ 
ciate Justice Harlan, and he took the ground that the 
acquirement of combined power to restrain trade vh> 
lates the Sherman law, because it constitutes a combina^ 
tion which potentially will operate to restrain trade. 
Three judges of the Supreme Court agreed with Justice 
Harlan in all respects. Justice Brewer did not agree 
with the proposition that the mere acquirement of the 
power to violate the Sherman law constitutes a violation 
thereof, but he did agree that the Sherman law had been 
violated in that case. So that combination was dissolved 
by a vote of five justices against four. 


4 


That is the law that was established in that litigation. 
Afterward the question arose as to whether the pur¬ 
chase by one corporation of the controlling stocks of a 
competing corporation constituted a violation of the 
Sherman law. In support of the affirmative of that 
proposition the decision of Justice Harlan could be cited. 
In support of the negative the dissenting views of Justice 
White could be cited. 

That was the state of the law at the time that the United 
States Steel Corporation desired to acquire the ownership 
of the Tennessee Iron & Coal Co. When they acquired that 
desire they were afraid that the executive department 
of the Government might differ from their views. They 
held that the mere acquirement of the stock of the Ten¬ 
nessee Iron & Coal Co. would not violate the Sherman 
law, for they might use it to promote trade rather than 
to restrain it. In that view of the case they presented 
to President Roosevelt the question as to whether or 
not he had any objections, as the executive department of 
the Government, to the purchase of that stock. I know 
the view that President Roosevelt took of that matter 
as a result of personal correspondence between himself 
and myself upon that precise point, and the view he took 
of it was rather well founded upon the Northern Securi¬ 
ties case. 

The view he took of it was that the acquirement of 
the stock of the Tennessee Iron & Coal Co. did not vio¬ 
late the Sherman law, although the ownership of that 
stock might afterward be used to violate that law; 
and therefore when he said to the gentleman who repre¬ 
sented the United States Steel Corporation, that he saw 
no objection to their purchase of that stock, he was sub¬ 
stantially saying to them: “So far as I know, you may 
use this stock after you have acquired it, to promote 
trade; but if you do use it to restrain trade, then you 


5 


will be violating the law.” It was in pursuance of that 
view of the Sherman law, which view was originally based 
upon the opinion of Justice White, in the Northern Se¬ 
curities case, that President Roosevelt, as I understand 
it- 

Mr. Hardwick. If you will pardon me just a moment. 
I will say that that very opinion which you refer to had 
been denounced in round terms by President Roosevelt 
all through this country. 

Mr. Walker. To which opinion are you referring? 

Mr. Hardwick. The original opinion in the Northern 
Securities case. 

Mr. Walker, I am unable to say that. I am pretty well 
acquainted with the history of the matter; but I am not 
able to agree with you upon that point. You know some 
facts, probably, that I do not know. 

Mr. Hardwick. I thought that was true. 

Mr. Walker. You could not prove it by me. [Laugh¬ 
ter.] 

It was in pursuance of that view of the Sherman law, 
as I understand it, that President Roosevelt acquiesced 
in the purchase by the New York, New Haven & Hartford 
Railroad Co. of those competing steamboat lines. 

Mr. Hardwick. I do not want to have a joint political 
debate with the gentleman, but I am willing to if he wants 
to put it on that ground. I thought he was discussing a 
question of law. I think the President’s action in that 
matter was based on entirely different motives from that. 

Mr. Walker. I am not inquiring into his motives. 

Mr. Hardwick. I think you are. You are trying to 
make a defense of him, right here, about this matter. 

Mr. Walker. I am trying to explain to the committee 
what I know about the development of the Sherman law, 
but I am not agreeing with President Roosevelt. I do 
not agree with his views on the Sherman law. I will tell 
you that now. 


6 


Mr. Hardwick. You do not. 

Mr. Walker. I do not. 

Mr. Hardwick. Where did you get the idea that that 
was the reason why he gave that Tennessee Coal & Iron 
Co. opinion! 

Mr. Walker. Because he wrote so to me personally, 
and I have the letter. 

Mr. Hardwick. That has never been published, has it! 

Mr. Walker. Certainly not. 

Mr. Hardwick. When did he make that explanation of 
his conduct in that matter! 

Mr. Walker. He wrote that letter to me about two 
years ago, since he came back from Africa. 

Mr. Hardwick. I am much obliged to you. Now I have 
what I want. 

Mr. Walker. Gentlemen, you will see the strict rele¬ 
vancy to my discussion of all I am saying. I am not try¬ 
ing to insert any remarks in the interest of any 
particular gentleman. I am trying to explain to you 
the development of the Sherman law in executive and 
judicial proceedings. In 1908—and I must beg the com¬ 
mittee to listen to this- 

Mr. Hardwick. I beg your pardon; but to correct the 
statement I made. I said that President Roosevelt had 
denounced certain decisions of the Supreme Court. The 
cases I had in mind—I want to say this in justice to my¬ 
self as well as to you—were the Trans-Missouri and the 
Joint Traffic cases, which preceded the Northern Securi¬ 
ties case. 

Mr. Walker. In 1908 President Roosevelt brought two 
new suits under the Sherman law, one against the New 
York, New Haven & Hartford Railroad Co. for having 
acquired the Boston & Maine railroad, and one against 
the Union Pacific Railroad Co. for having acquired the 
control of the Southern Pacific. 


The Chairman. Mr. Walker, what the committee 
wished to get at from you was this point: whether the 
Sherman law in its operation could reach conspiracies 
against trade entered into between a corporation in this 
country, and one in England or Canada. 

Mr. Walker. I am leading directly up to it, and I 
shall reach that point in not more than live minutes. 
President Roosevelt brought suit against the Union Pa¬ 
cific and Southern Pacific for an illegal combination; 
and almost at the same time he brought suit against the 
New York, New Haven & Hartford and the Boston & 
Maine railroads for illegal combination; and those suits 
were pending at the end of his administration. 

Near the beginning of the administration of Presi¬ 
dent Taft, he became persuaded, as did his Attorney 
General, Mr. Wickersham, that the facts of the case in 
New England as between the Boston & Maine and the 
New York, New Haven & Hartford Railroad Cos. did 
not constitute any restraint of trade under the Sher¬ 
man law. And in pursuance of that persuasion he di¬ 
rected the Attorney General to withdraw, and the Attor¬ 
ney General did withdraw that suit. About the same 
time the Union Pacific people applied to President Taft 
to withdraw the Union Pacific suit, and those applica¬ 
tions were based upon the same theory—and it was a 
plausible theory, too—namely, that the competition that 
existed between the Union Pacific and the Southern Pa¬ 
cific was negligible and incidental and not essential, and 
that the competition between the New York, New Haven 
& Hartford and the Boston & Albany was incidental and 
not essential. Afterwards in the case of the Union Pa¬ 
cific road, two years after the New Haven case was with¬ 
drawn, the United States Circuit Judges, for Utah, four 
in number, decided that that view was the correct view, 
and that the competition between the Union Pacific and 


8 


Southern Pacific was incidental, and therefore its sup¬ 
pression was non-violative of the law. If that view of 
the law had been applied to the New York, New Haven 
& Hartford combination, perhaps the same result would 
have been reached. And it was on account of that view 
of the law, that the New York, New Haven & Hartford 
suit was withdrawn. 

But a week ago last Monday, I was in the Supreme 
Court chamber when the Supreme Court reversed the 
decision of the court below in the Union Pacific case; and 
held that the competition proved in that case, however 
small it might he in proportion to the magnitude of the en¬ 
tire business of the two roads, was of such a character 
that its suppression constituted a violation of the Sher¬ 
man law, and therefore that the two corporations must 
be divorced. 

Now I come to one exact point involved here. The 
moment that decision is applied to the New York, New 
Haven & Hartford consolidation with the Boston & Maine 
Railroad, the same conclusion must be reached, and the 
view Mr. Buckland intimated, that that consolidation was 
an innocent one, ought to be revised by him in the light 
of the Union Pacific decision. With a thorough acquaint¬ 
ance of the facts of the two cases, and with a thorough 
acquaintance with the law, I wish to express to this com¬ 
mittee my opinion that the moment the decision of the 
Supreme Court of the United States in the Union Pacific 
Co. case is applied to the New York, New Haven & Hart¬ 
ford and Boston & Maine consolidation, the same result 
will have to be reached, and those two corporations must 
be divorced. How is that result to be reached? There 
is no occasion for Congress to pass any new law to ac¬ 
complish that result. It can be reached under the Sher¬ 
man law, just as well as the Union Pacific divorce was 
reached under the Sherman law. And the circumstance 


9 


that Attorney General Wickersham withdrew that suit 
is no obstacle to bringing a new suit for the same pur¬ 
pose, and pressing it forward under the view of the 
law which is now well established in the Union Pacific 
case. Therefore there is no occasion, for Congress to do 
anything towards promoting the divorce of the New York, 
New Haven & Hartford Co. and the Boston & Maine 
Railroad Co. 

In respect of the facts which have been brought be¬ 
fore the committee, and complained of, by the gentlemen 
who represent Providence and Boston, relevant to the 
building or not building of the Southern New England 
Railroad by the Grand Trunk Railroad Co., I wish to 
make some observations which have not been made be¬ 
fore. 

It appears to me that the cessation of the building 
by the Grand Trunk Railroad Co. in Massachusetts and 
in Rhode Island has not been due (or at least it is un- 
pro vahle that it has been due) to any combination be¬ 
tween that corporation and the New York, New Haven 
& Hartford Railroad Co. I think that if this committee 
investigates that question it will find that the New York, 
New Haven & Hartford Railroad Co. ardently desires 
that the Grand Trunk Railroad Co. shall not build those 
railroads, and in order to promote that desire, the New 
Haven company is proposing to the Grand Trunk Rail¬ 
road Co. a joint contract which shall he so favorable to 
the Grand Trunk Co. that it will not need or desire to 
build the New England extensions. If that turns out to 
he so, what can Congress do about it? Congress can do 
this about it, and nobody can do about it, what I am about 
to suggest, without new legislation. 

I hold this view: On the assumption of the truth and 
accuracy of the statements which have been made by the 
gentlemen here, the Grand Trunk Railroad Co. is being 
tempted to work a fraud on the State of Massachusetts 


10 


and on the State of Rhode Island. The Grand Trunk 
Railroad Co. has fairly made a contract with those 
States; which contract provides that, under certain con¬ 
siderations, performed by the two States, the Grand 
Trunk Railroad Co. will build a railroad from Palmer 
to Providence, and one from Woonsocket to Worcester, 
and one from Woonsocket to Boston. 

Now, if the Grand Trunk Railroad Co. fails to do that, 
if it repudiates its fair contract, then I hold that Con¬ 
gress has power to enact a statute to prevent the Grand 
Trunk Railroad Co. from doing any business anywhere 
in the United States until it does perform that contract. 
Congress can do that, in pursuance of its power to regu¬ 
late commerce among the several States and with foreign 
nations. I think it is perfectly undeniable that Congress 
has power to enact a statute, in general terms, but appli¬ 
cable to these facts, which would operate to say to the 
Grand Trunk Railroad Co.: “You must carry out your 
contract with Massachusetts and Rhode Island; for if 
you do not do it, you will not be permitted to do any 
railroad business in Maine, Massachusetts, Vermont, New 
Hampshire, or anywhere else in the United States.” 

Mr. Garrett. Mr. Walker, will you pardon me there 
a moment? 

Mr. Walker. Yes, sir. 

Mr. Garrett. The corporate name of this concern is 
the Southern New England, and not the Grand Trunk 
Railroad Co. 

Mr. Walker. I know that. I deem that immaterial; 
because it is the Grand Trunk Railroad Co. which has 
made its promise to the two States. The Grand Trunk 
Railroad Co. can perform that promise through the 
Southern New England Railroad Co. or by any other 
instrumentality; but the Grand Trunk Railroad is bound 
in ethics and bound in morality to perform its contract 
with the State of Massachusetts and with the State of 


11 


Rhode Island. It is competent for Congress if Congress, 
in its wisdom, sees fit to exercise that power, to enact a 
statute which shall make it obligatory upon the Grand 
Trunk Railroad to perform that contract, upon penalty 
of being excluded from the United States altogether. 

Mr. Garrett. Because it is a foreign corporation. 

Mr. Walker. That is right. Under the power to regu¬ 
late commerce between the several States and with for¬ 
eign nations I have not the slightest doubt that Congress 
has that power. Now, if Congress has that power it can 
exercise it, and I know of no way—and I have studied 
the matter very carefully since I have attended these 
hearings yesterday and to-day—I know of no way short 
of that, or other than that, by means of which the wrong 
can be stopped, which the Grand Trunk Railway Co. is 
seeking to perpetrate upon Massachusetts and Rhode 
Island. That wrong can not he stopped by any action of 
either of those States, because it relates to international 
commerce and to interstate commerce. I do not believe 
that it is possible for our friends from Massachusetts 
and Rhode Island to secure any redress for the wrongs 
of which they have complained to this committee; unless 
Congress will enact such a statute as I suggest. 

The Chairman. Mr. Walker, I find that some mem¬ 
bers of the committee have imperative engagements, and 
they have just suggested to me that if you would file some 
additional views, the committee would be much obliged, 
hut we have to take a recess now on account of these im¬ 
perative engagements. 

Mr. Walker. This is a very suitable end to my, re¬ 
marks; because my sugestion of remedy—and the only 
remedy that I know of, for the wrongs complained of— 
is the principal thing I had to lay before the committee. 

The Chairman. I agree with you, and think you are 
correct about that. 

Thereupon the committee adjourned. 


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